Proportionality Judgement

Bearing in mind that state contracting involves, on the one hand, the elaboration of the specifications of the state entity when invoking the general interest as a constitutional value that must be respected by the Public Administration to guarantee the state purposes, that is, to select the proponent that can guarantee the fulfillment of the contract object of the contract; we also saw how the public bidding was radiated by two other constitutional values, the right to free economic competition, the plurality of proponents, free competition as one wishes to call it, in connection with the right of equality between proponents; In order to harmonize the two constitutional values, we propose a doctrine and jurisprudence, a test of proportionality, so now it is up to us to develop the concept by determining its scope and application.

In these terms we propose then to resort to the methods of interpretation of the validity of the law to determine the application of the principle of proportionality, since doctrine and jurisprudence have qualified it as an external limit of the fundamental right to free economic enterprise, and also as a budget. to develop the general interest that has been delegated by the legislator to the executive power in terms of specifications derived from discretionary powers, where the measures adopted must be reasonable and proportionate. When applying the proportionality judgment, the limitation to the right to equality and free economic competition is validated when the measure has already been justified from the point of view of the general interest, all with the purpose of applying this concept of proportionality, which serves as an instrument of interdiction of arbitrariness and abuse or diversion of power.